On Thursday August 7, 2025, the National Labor Relations Board (“NLRB” or “Board”) Acting General Counsel William B. Cowen issued GC Memorandum 25-10. The memo directs Regional Offices to evaluate Unfair Labor Practice (“ULP”) charges at the time of filing to determine whether the charges can be deferred to the parties’ Collective Bargaining Agreement (“CBA”) grievance and arbitration provisions.

What is NLRB Deferral?
Since the enactment of the National Labor Relations Act (“NLRA”) in 1935, “dispute resolution” mechanisms, such as grievance and arbitration processes, found their way into the vernacular of nearly every collective bargaining agreement. At the same time employees largely retained the right to file ULP charges with the Board, asserting not only a violation of the agreement, but in so doing, a violation of the law, often forcing employers to litigate the same dispute twice at the same time – through the CBA’s grievance and arbitration process and before the NLRB. To address this duplication, the Board developed a “deferral” process, whereby it would defer investigation/prosecution of a ULP until after the parties to a CBA first attempt to resolve the issue under their CBA’s dispute resolution procedures. In the Steelworker’s Trilogy, a trio of U.S. Supreme Court cases from 1960, the Court acknowledged that the statutory scheme of the NLRA is supported when parties to a CBA avail themselves of the agreed upon dispute resolution mechanisms to resolve disputes. 

Two-Step Analytical Framework Front-loaded.
The memorandum directs the Regional NLRB Offices, at the initiation of a ULP, to make a determination as to whether deferral is appropriate, following Dubo Manufacturing Corp. 142 NLRB 431 (1963). Under Dubo, deferral is appropriate where: 

1. A grievance has been filed under the CBA;
2. The ULP charge is otherwise timely and proper on its face;
3. The preliminary investigation indicates that the allegations in the ULP can be resolved through the CBA grievance/arbitration process.

If the elements of Dubo deferral are not met (most often due to the lack of a grievance having been filed), then investigators must consider whether deferral is appropriate under Collyer Insulated Wire 192 NLRB 837 (1971), which provides guidance on deferral in the absence of a grievance, finding deferral appropriate if:

1. The allegations of the ULP also constitute a grievance under the CBA;
2. The CBA dispute resolution mechanism results in final and binding arbitration;
3. The charged party waives its defenses to the (un)timeliness of the grievance.  

It is important to note that a ULP deferred under Dubo is non-appealable, while a deferral under Collyer may be appealed. In a deferral situation under Dubo, the charging party does not face the jeopardy of dismissal of the charge, even if it doesn’t avail itself of the dispute resolution process in the CBA. Contrarily, a deferral under Collyer may be appealed, but the charge itself will be dismissed if the charging party refuses to use the grievance/arbitration process of the CBA.

Change in the Status Check Process.
The memorandum also changed the process for status checks on post-deferral cases, shifting the reporting onus from the NLRB to the parties themselves. Instead of a quarterly status check by an investigator with the parties, now the charging party needs to only file a deferral status report twice a year (March 15 and September 15 respectively). 

What Does This Mean for Employers?
The thrust of the memorandum carries forward Acting G.C. Cowen’s promise to make more “judicious” use of the NLRB’s strained professional resources and further validates the use of dispute resolution mechanisms over Board litigation. Prior to this change in focus, it was up to the employer to raise the existence of a dispute resolution mechanism as a defense to a ULP, a process which caused additional delay before a case could proceed either under the CBA or as a ULP. Employers will benefit from the Board inserting this analysis at the outset of a ULP claim because it should help streamline the litigation process, avoid multi-forum litigation of the same factual dispute, and save time and resources in the process.  

Employers may wish to evaluate the dispute resolution clauses of their CBAs to ensure they meet the Dubo and Collyer standards. If employers have further questions, please reach out to partner Kevin A. Moore or any member of Barley Snyder’s Labor Law Practice Team.